MT. RALIYATBAI W/O. KHIMJEE Vs. KANHAIYALAL BIRDICHAND

JUDGEMENT

(1.) THIS is an appeal by an unsuccessful plaintiff who sued for a declaration that a house situated in Khandwa was not liable for attachment and sale in execution of a decree by defendant 1 Seth Kanhaiyalal against the three remaining defendants. In appeal the only respondent is Kanhaiyalal and the decree has proceeded ex parte against his judgmentdebtors.

(2.) KANHAIYALAL , who is the managing partner of the firm Balmukand Hanumanbax of Khandwa, had obtained a decree in Suit No. 818 of 1935 on 16th October 1937 against the three defendants who are brothers and a fourth brother Narshidas, who is now dead, for some Rs. 14,000 and in execution of that decree on 1st February 1938 he attached the house now in dispute. On 12th January 1940, that is to say nearly two years later, the plaintiff-appellant Mt. Raliyatbai launched an objection in the executing Court under the provisions of Order 21, Rule 58, Civil P.C. The objection was dismissed on the ground that there had been undue delay, and the suit out of which this appeal arises was filed 5 months later on 30th August 1940.

(3.) THE defendant Kanhaiyalal (the other defendants making no appearance) contended that the whole transaction, both of the sale and of the mortgage, was fictitious; that she lent no money in 1933 as aha was not in a position to lend any money and the fictitious mortgage was arranged in order to save the property from the hands of Kanhaiyalal who even at that time was a creditor of the four brothers. After the attachment an unnecessary reference to arbitration was made resulting in a decree in a civil Court in order to avoid the effect of Section 64, Civil P.C., and consideration for the sale-deed subsequently executed in May 1939 was not the satisfaction of the mortgage since no mortgage really existed.